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Judgment
Horwill, J.—The plaintiff in O.S. No. 4 of 1940 on the file of the District Munsiff of Negapatam was respeatedly unready. When the suit
was called for hearing on 31st July, 1940, his vakil reported no instructions. The District Munsiff gave the plaintiff a further day to enable him to
proceed with the suit. The evidence indicates that the plaintiff was busy until 12-30 the following day in trying to raise money. As he failed to do so,
he went home and made no attempt to reach the Court. His suit was consequently dismissed. He put in an application under Order 9, Rule 9 to
have the decree set aside, alleging that he had been taken ill and was unconscious for two days. The District Munsiff rightly rejected that plea and
dismissed the application. In appeal, the District Judge argued that as it was of no use for the plaintiff to come to Court without money or
witnesses, he was quite justified in staying away and that his not having either money or witnesses was a sufficient cause for his non-appearance.
He therefore allowed the appeal and ordered restoration of the suit on condition that the plaintiff paid Rs. 25 costs to the defendant.
There can be no doubt that the learned District Judge acted without jurisdiction. Order 9, Rule 9 permits the setting aside of an ex parte decree
only when the plaintiff is unable to be present; and that inability does not mean inability to raise the wherewithal to continue the suit--whether by
lack of funds or absence of witnesses--but some physical inability such as the break-down of a conveyance or illness.
I do not however consider that there is any necessity in this case to invoke the power of this Court u/s 115, Civil Procedure Code, as there is
something in the learned District Judge''s contention that if the Munsiff thought that the plaintiff should be given some time to raise money to
continue the suit, he should have given him at least a few days in which to do so; and that his limiting him to one day was unreasonable. The
petitioner is entitled to his costs in the lower Court and in this Court; but in otherwise dismissing the petition the order of the District Judge will be
modified by requiring the petitioner not only to deposit the Rs. 25 (if he has not done so) but the costs of the lower appellate Court and of this
Court within three weeks of the date of taxation of costs in this Court. If he does not do so, the order of the District Munsiff dismissing the suit will
stand.